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TERRITORY OF HAWAII. 



SPEECH 



HON. GEORGE G. VEST, 



OF MISSOURI, 



SENATE OF THE UNITED STATES, 



FRIDAY, FEBRUARY 23, 1900. 



WASHINGTON. 

1900. £r*l( 

4102 V *\ 



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p. 

Cong. Record Off. 



SPEECH 

OF 

HON. GEORGE G. VEST. 



The Senate having under consideration the bill (S. 222) to provide a gov- 
ernment for the Territory of Hawaii- 
Mr. VEST said: 

Mr. President: .No one opposed the annexation of Hawaii more 
intensely than myself, but that is now a dead issue, and of course 
it is the duty of every Senator to secure the best possible govern- 
ment, the most equal and fair, for the inhabitants of those islands. 

I shall vote for the pending bill, because in its general outlines 
it is beyond and above constitutional criticism and raises none of 
the issues which will be raised in regard to Puerto Rico and the 
Philippines. I think that the thanks of the country are due to 
the Senators who prepared this bill. There is no provision in it 
changing the tariff and, even by implication, publishing to the 
world that Hawaii is not a part of the United States, or, if a part 
of the United States, that it can be held as a colony, a province, 
without the people of those islands having the slightest shadow of 
self-government. 

I shall not repeat, Mr. President, my views at length in regard 
to the extraordinary assumption that any territory under the ju- 
risdiction of the United States is not a part of the United States. 
It is to me, with all respect for my colleagues who hold the oppo- 
site ground, the most outrageous, the most dangerous, the most 
unrepublican, the most undemocratic assumption that I have ever 
heard during my public life or ever expect to hear. 

In the last Congress, when discussing the relations of these newly 
acquired islands to the United States, I undertook to show that 
by the historic argument, if I may so term it, it was impossible 
that the men who fought the Revolutionary war and made the 
Constitution of 178!) could ever have contemplated establishing a 
colonial system in this country. I said then and I say now — and 
it can not be successfully contradicted, in my opinion — that the 
larger portion of the Declaration of Independence was devoted to 
stating the outrages and wrongs committed upon the colonics by 
the King of Great Britain, those wrongs being the acknowle<U fed 
and established features of the colonial system as practiced by 
European nations. 

I have before me that Declaration of Independence in the text- 
book of the Senate, the Manual and Rules, an old-fashioned edi- 
tion, which I was compelled to search for in the Senate library, 
published in \>il2. We have now a gaudy, morocco-bound, and 
gilt-edged edition, purporting to be the same work, from which 
the Declaration of Independence has been expunged. When I 
came to the Senate, the Rules and Manual contained the Declara- 
tion of Independence and Washington's Farewell Address. Both 
4102 ;; 



are now eliminated; I do not know why, unless they had become 
eo old-fashioned and antiquated as to be considered ancient his- 
tory and siniply academic in their form and effect. 

Mr. PLATT of Connecticut. Why, Mr. President 

The PRESIDENT pro tempore. Does the Senator from Missouri 
yield to the Senator from Connecticut? 

Mr. VEST. Certainly. 

Mr. PLATT of Connecticut. I hope the Senator is mistaken in 
supposing that the Declaration of Independence has been elimi- 
nated from our Manual, and I think he is, because on page 389 of 
the edition of the Manual published in 1S99 the Declaration is to 
be found. I think the Senator must have overlooked it. 

Mr. VEST. I do not think I did. I looked very carefully for 
it in the last edition, as I understood it to be, of the Rules and 
Manual. But it is a matter of no importance. It might have 
been left out by inadvertence. I do not know how this book is 
prepared; but I was astonished not to find, or, I was unable to 
find, in the edition that was placed on my desk at the beginning 
of this session, any copy of the Declaration of Independence or 
the Farewell Address of Washington. I shall not undertake to 
say that it was done because the doctrines in those two great papers 
had become obsolete, or even that it was intentionally done. 

Mr. TELLER. It was put in the back of the volume; that is 
all. 

Mr. VEST. Mr. President, it does not matter whether it is 
published or not. I repeat that the Declaration of Independence 
is devoted, much the larger part of it. to an arraignment of the 
King of Great Britain for applying to the colonies in America the 
oppressive and despotic features of the colonial system as prac- 
ticed by the nations of Europe. 

It is true that in this Declaration of Independence the colonial 
system is not denounced specifically and eo nomine, but all of its 
salient and essential features of despotism are singled out by 
Jefferson and denounced. 

"He," says Jefferson, referring to the King- of Great Britain, 
George III, " has oppressed the people of the colonies by denying 
them just and fair trial in the courts; has quartered soldiers upon 
them in time of peace, and committed all the other wrongs that 
the monarchs of Europe under the colonial system inflicted upon 
their subjects." 

If the men who fought the Revolutionary war could to-day 
take cognizance of the affairs of the living, t hey would be aston- 
ished to know that they suffered and died, half clothed, hall fed, 
and half armed, for seven long years in order that their descend- 
ants might inilict upon oilier people-;, of any color, the wrongs 
and outrages which Jefferson denounced in this I eclaration. 

There was, and it can be seen in the original Dei of In- 

dependence, written by Jefferson's own hand, another indictment 
besides those (omul in the Declaration of independence as we 
now have it. in the archives of the Government can be found 
i his original Declaration, and it shows upon its face thai when 
Jefferson reported the Declaration il contained themosl terrible 
arraignment of the King of England for introducing African 
slavery into this continenl thai overcame from the lips or pen of 
mortal man. 

! le has, says Jefferson, made war upon an innocenl and helpless 
people in Africa, torn them from their homes, ca] tivated them — 

■It";.' 



using the old Revolutionary term, which we have now turned 
into '-captured*'— captivated them, brought them to this conti- 
nent, inflicted them upon an unwilling people, and then attempted 
to incite servile insurrection in order that fire and sword might 
be put into the hands of the slaves against their owners and 

Virginia as a colonv had for years protested against the African 
slave trade, but in vain. The King of England had nullified in 
every instance the acts of the colonial assembly of V lrginia en- 
deavoring to prohibit the importation of slaves into her domain. 
Jefferson knew this; but when this indictment against the King 
of Great Britain for bringing into this country African slaves 
was considered by the Convention, there was then, as always after- 
wards, a sensitive feeling in regard to the institution of slavery; 
and at the instance of .John Adams and others this part ot the 
Declaration was stricken out. , . 

There is a curious history. Mr. President, in regard to the insti- 
tution of slavery, or the existence of that institution in the colonies 
' and afterwards in the United States, which has always seemed to 
me one of the most remarkable features in the formation of the 
Constitution of 1789. We can now afford to allude to it m this 
era of fraternal feeling, when our President says that the graves 
of men on both sides who fell in battle during the civil war should 
be decorated alike. The debates of the Convention of 1789 show 
that when the question of the importation of African slaves into 
this country came up for discussion. Mr. Madison of Virginia, 
the leading member of the Convention, denounced the African 
slave trade as inhuman, un-Christian , and unworthy to exist amidst 
a free people. He said, using his own language, ' 'it was a shame 
and disgrace that in a Republic African slavery should be insti- 
tuted with the consent of its people.'' 

Gouverneur Morris, a member of the Convention, alluding to 
what had been said by Mr. Madison, deprecated the excited con- 
troversy that would follow in regard to the African slave trade, 
and said that in the same article was a provision to which Jsew 
England greatly objected, and it was to the effect that the naviga- 
tion laws could be abrogated by a bare majority of the members of 
both Houses of Congress. New England was then the great ship- 
building and ship-sailing portion of this country, and the naviga- 
tion laws gave a monopoly to the shipbuilders of the United 
States, no foreign-built ship being admitted to the coastwise or 
foreign trade in this country. ••If," said Gouverneur Morris, 
•' the navigation laws, in which New England is greatly interested, 
and the importation of African slaves can be sent to a committee, 
I have no doubt that an adjustment or a compromise can be made 
agreeable to all sections." The motion was carried, and two days 
afterwards this committee of adjustment reported, requiring two- 
thirds of both Houses of Congress to repeal the navigation laws, 
which are yet upon our statute book, and providing that the Afri- 
can slave trade should last until 1800. When I his question came 
before the Convention, General Pinckney, of South Carolina, moved 
to extend the slave trade to L808. The motion was seconded by 
Mr Gorham, of Massachusetts, and, each State casting one vote, 
the motion was carried. South Carolina. North Carolina. Georgia, 
Maryland and all of the New England stairs voting tor it: V lr- 
einia Pennsylvania. Delaware and New Jersey voting against it. 
Mr President, the African slave trade lasted until 1 80S under 



41UJ 



this agreement. The institution of slavery, forced upon old Vir- 
ginia, went out in tears and fire and blood, as Mr. Jefferson said 
that it would. The South paid a terrible price for this agree- 
ment in the Convention of 1 789. Her best and bravest sons watered 
the soil of the South with their blood, and New England, although 
the price she has paid has not been so terrible and disastrous, sees 
to-day the shipbuilding, which she endeavored to preserve as a 
monopoly to her people, almost extinct so far as the foreign trade 
is concerned; and the merchant marine of the United States un- 
der these navigation laws, a relic of barbarism, has run down 
from TO per cent carried in American ships in 185? to less than 
11 pi r cent to-day; and we are now about to enact a law — and I 
take it that it will pass this Senate by a large majority — leaving 
the navigation laws, the result of this bargain with the slave 
trade in 1789, unrepealed. We are about to give 8180,000.000 in 
subsidies to shipowners in order to do away with the disastrous 
effects of the navigation laws to which I have alluded. 

It is a curious history, Mr. President. In vain the appeal is 
now made to wipe out those laws, narrow and bigoted and disas- 
trous to our people; and they are kept upon the statute book as if 
they were some sacred institution, never to be attacked. We are 
to resort now to the unconstitutional project of subsidies to do 
away with their evil effects. 

Another curious thing. Mr. President, while I am in a reminis- 
cent mood, is that in the Convention of 1789 a proposition was 
made to give Congress the power to grant subsidies to agriculture, 
manufactures, and commerce, which was referred without debate 
to a committee and was never heard of afterwards. I have no 
hesitation in saying that, in my opinion, there is no constitutional 
power in Congress to take the tax money of the people of this 
country and give it as subsidies to any interest: and I am con- 
firmed in the opinion that the men who made the Constitution 
never intended that subsidies should be granted, from the fact 
that the proposition to give them to agriculture, manufactures. 
and commerce was allowed to sleep and was not even dignified 
by a debate in the Convention. 

Mr. President. I had the temerity in the last Congress to quote 
from the Dred Scott decision, to the effect that this Government 
lias no right to hold colonies: that it has no right to hold any peo- 
ple as subjects, and that no territory can be acquired under the 
Constitution as it now exists except with the ultimate purpose of 
its being admitted as a State within the discretion of Congress. I 
offered a resolution to that effect, which was ridiculed, maligned, 
and called absurd, and it was charged that I was an unrepentant 
rebel, a traitor to the country, and that my motives were of the 
most sinister and malign character. 

I said at the time when I quoted from the Dred Scott decision — 
and I will not repeat the quotation nor place it in the remarks I 
am now making— that the political part of that opinion was set- 
tled beyond resurrection by the result of 1 lie civil war: but I 
asserted then, and I assert now, that the portion of it which re- 
lated to the power of the United states to hold colonii a had been 
acquiesced in by tin 1 entire court, not only the seven Democrats; 
but .lustices .Mel, can and Curtis, who delivered dissenting opin- 
ions, did not dissent from what < 'hief Justice Taney said in regard 
to the constitutional power to which I hav< adverted, in answer 
to that the junior Senator from Connecticut [Mr. Pi..\tt|, in 
reply to my argument, contented himself with denouncing the 
LLCS 



Dred Scott decision as a discredited opinion, and in his speech 
referred to it as a decision which is popularly believed to have 
contained the enuciation that the negro had no right which the 
white man was bound to respect. 

Mr. President, I do not know that I would have addressed the 
Senate to-day except that I want the opportunity, in justice to the 
dead, to correct any impression that may have been made by the 
intimation of the Senator from Connecticut. That statement is a 
slander upon the seven judges who united in the opinion in the 
Dred Scott case, and especially upon Roger B. Taney, than whom 
a purer man never lived in this or any other country. It has gone 
uncontradicted too long. I challenge any man to find one sen- 
tence, one word, one syllable in that opinion which contains any 
such statement as that to which the Senator from Connecticut 
alluded. The Senator from Connecticut is an able lawyer, a fair 
man, as my experience with him in this body has taught me to 
believe. Chief Justice Taney said in that opinion, alluding to the 
status of this unfortunate and helpless race of Africans, that they 
had been treated by the nations of Europe, and especially by the 
English kings and queens, as having no rights that the white man 
was bound to respect; but he deprecated that state of things. 
He expressed sympathy for this most unfortunate race of all that 
have ever lived beneath the sun. He was not an advocate of 
slavery and doubted the policy of its existence in this country, as 
did Mr. Jefferson and Mr. Clay and Mr. Benton, but I repeat that 
there is not one syllable, not one letter in that much maligned and 
slandered opinion in the Dred Scott case to justify this political 
canard that was used to influence the election for President in 
1860. 

Mr. President, the party feeling that then existed was so intense 
that William H. Seward, Senator from New York, after the de- 
livery of the Dred Scott decision, which was the day after Taney 
had sworn in James Buchanan as President of the United States 
upon the eastern exposure of this Capitol, stated, in a speech to 
be found in the Congressional Record, that Taney stooped and 
whispered in the President's ear: " To-morrow the Supreme Court 
will decide the Dred Scott case, and carry slavery into the Terri- 
tories by virtue of the Constitution "—the monstrous statement 
that the Chief Justice of the United States would lean down and 
whisper into the ear of the President the news that the Dred Scott 
decision would be decided in the interest of slavery! That state- 
ment was used in the campaign of 1860, and went through the 
North uncontradicted, a statement so monstrous as to be beyond 
belief, even by one who was tainted and poisoned with political 
venom. 

Mr. President. I am glad to be able to state that the Supreme 
Court of the United States has unanimously, within a few years, 
reaffirmed the doctrines laid down in the Dred Scott decision as 
to the power of this Government to hold colonies. I did not have 
this opinion when I spoke during the last Congress. I have here 
an opinion delivered by Justice Gray, with the unanimous assent 
of his colleagues, a few years ago. Is there anyone here who will 
doubt the loyalty of Justice Gray to this country or to the Repub- 
lican party? He is a jurist of eminence, having occupied the high- 
est seat upon the supreme bench of Massachusetts, and then, at 
the instance of the distinguished senior Senator from Massachu- 
setts | Mr. Hoar], as I have understood, he was put forward for 
the place he now honors upon the Supreme Bench of the United 
4108 



8 

States. If he is not a Republican, if his judicial opinions are to 
be attacked upon partisan grounds, where will be found the man 
who can be said to be true to the doctrines of the Republican 
party? I will ask the Secretary now to read an extract from that 
opinion as to the point I have made. 
The Secretary read as follows: 

In the case of Shively vs. Bowlby (152 IT. S.) Mr. Justice Gray said: 
"(1) The Territories acquired by Congress, whether by deed or cession 
from the original State or by treaty with a foreign country, are held with 
the object, as soon as their population and condition justify, of being ad- 
mitted into the Union as States upon an equal footing with the original 
States in all respects; (2) and the title and dominion of the tide waters and 
the land under them are held with the United States for the benefit of the 
whole people, and as this court has often said in cases above cited, ' in trusts 
for the future States.' " 

In summing up the Shively case (page 57) the court said: 
" Upon the acquisition of territory by the United States, whether by cession 
from one of the States or by treaty with the foreign country, or by discovery 
and settlement, the same title and dominion passed to the United States for 
the benefit of the whole people and in trust for the several States to be ulti- 
mately created out of the territory." 

Mr. VEST. That was the doctrine asserted by Chief Justice 
Taney, that all territory acquired either by purchase, cession, or 
conquest, either from foreign countries or granted by the orig- 
inal States, as Virginia granted the Northwest Territory, could 
not be held as colonies; that the United States simply held it as 
trustee. As the syllabus of that case shows, this was in regard to 
tide water and tide-water lands in a Territory, and the Supreme 
Court declared emphatically, in language not stronger than that 
in the Dred Scott case, that the United States is simply a trustee, 
and the ultimate purpose of having any such territory is to make 
it a State. 

Mr. President, I have here copious extracts from Judge Cooley's 
work upon Constitutional Limitations, another distinguished Re- 
publican. I will not inflict all these upon the Senate, but I will 
print them in my remarks in order that they may be criticised, if 
worthy of criticism. Justice Cooley declares that territory can 
only be acquired by the United States with the ultimate purpose 
of changing it into States. In speaking of our Territorial and the 
British colonial system, Mr. Cooley says: 

In this dependence of the Territories upon the central Government there 
is some outward resemblance to the conditions of the American colonies under 
the British Crown; but there are some differences which are important and 
i in I' i'il vital. The first of these is that the Territorial condition is understood 
under the Constitution to be merely temporary and preparatory, and the 
people ol t he Territory, while it continues, are sure of the right to create and 
establish State institutions for themselves as soon as the population shall be 
siiiiii-ieiit and the local conditions suitable; while the British colonial system 
contains no promise or assurance of any but a dependent government indefi- 
nitely. (Cooley's Principles of ( '(institutional Law, page 37.) 

Mr. Cooley draws a second distinction on page 37: 

The second is that above given, that the people of the American Terri- 
tories are guaranteed all the benefits of the principles of const it utional right 
which protect life, liberty, and property, and may defend them under the 
law. even as against the act ion ol t he < luvcnm lent .itself; while ill the ci 
tin e principles wore subjects ot dispute, and If admitted would be within 
the control of an absolute imperial legislature, which might overrule them 
at will. 

.Mr. Cooley says, writing of our Territorial and the British colo- 
nial system: 

There is also a difference in respect to taxation which, though not so strik- 
ing, is still import ant. The Territories levy their own taxes for all purposes, 
and they are never taxed separately for national purposes, but only as parts 
1102 



9 

of the whole country and under the same rules and for the same purposes as 
are the States. Nor is it intended to realize from them any revenue for rh>' 
National Treasury beyond what is expended by the United States in their 
interest. 

Mr. Cooley says, on page 187 of his work on Constitutional Lim- 
itations: 

Tne Constitution also provided that new States may be admitted by < '"ti- 
gress into the Union; but whether they should be formed of territory at that 
time belonging to the States, or from territory that might thereafter be 
acquired, or taken in as existing States previously independent, was i 
pressly determined by that instrument. By the ordinance of 1787, however, 
which the Constitution left in force, it had been agreed that States, not ex- 
ceeding five, might be formed from the Northwest Territory and received 
into the Union; and it may be assumed as unquestionable that the constitu- 
tional provision contemplated that the territory then under the dominion of 
the United States, but not within the limits of any one of them, was in due 
time to be formed and organized into States and admitted into the Union, as 
has since in many cases been done. 

Indeed, it could never have been understood that any territory which by 
purchase, cession, or conquest should at any time come under the control of 
the United States should permanently be held in a Territorial condition, and 
the new States which have been formed of territory acquired by treaty 
must be supposed to have been received into the Union in strict compliance 
with the Constitution. 

But we are told that the opinion of Chief Justice Taney in the 
Dred Scott case was obiter dictum and the point was not before 
that court. The question in the Dred Scott case was simply this: 
Did the Constitution of the United States authorize a slaveholder 
to take his slave into the common territory of the country where 
slavery was prohibited by Congress without losing property in his 
slave? The case originated in my own State. Missouri, where an 
Army officer took his body servant. Dred Scott, into the territory 
north of the Missouri compromise line of 1820. and on his return to 
Missouri this negro slave, Dred Scott, sued out a writ of habeas cor- 
pus, claiming that by having gone into this territory north of the 
Missouri compromise line he became free and must necessarily re- 
main free, and that the status of slavery did not attach to him when 
brought back to the soil of Missouri. The supreme court of .Mis- 
souri decided the case against Dred Scott. 

It was then taken to the Supreme Court of the United States as 
involving a statute of the United States establishing the Missouri 
compromise line, and the real question involved in the case was 
whether in the face of the Missouri compromise the Constitution 
of the United States proprio vigore gave the slave owner a right 
to take his property into territory held by the United States Gov- 
ernment, as Justice Gray said, as trustee for the people of all the 
States. Chief Justice Taney and the six associate justices who 
agreed with him said that the Constitution did override any stat- 
ute that could be made by Congress as to the right of a citizen of 
any of the States to take his property, admitted to be property by 
the Constitution, into the common territory of the Union. The 
point at issue and the real point was. does the Constitution proprio 
vigore apply to all the territories of the Unite,! states, not only 
without the action of Congress, but in spite of an act of Congress 
which said that north of acertain line or degree of latitude slavery 
and involnntarv servitude should not exist.' 

How. then, could the decision in that case be obiter dictum? It 
was the point at issue, and Chief Justice Taney and his associates 
declared emphatically and distinctly that the Constitution applii <i 
to the Territories. Nothingwas urged in all that elaborate argu- 
ment, when every justice delivered a separate opinion for hiin- 
♦102 



10 

self, about the Congress of the United States applying the Con- 
stitution to the Territories of the United States. That is a new 
departure. I do not mean to say that it has not been advanced 
before. Mr. Webster used it in the slavey debate over the New 
Mexican Territory, and the junior Senator from Vermont [Mr. 
Ross], in an elaborate address which he made here some days ago 
upon the question to which I am now speaking, quoted from a 
brief of Daniel Webster in the Canter case, where Webster asked 
the question. "How does the Constitution get into Florida?** It 
is the first time, with all due respect to the Senator from Vermont, 
that I have heard the brief of a feed counsel quoted as judicial 
authority. 

Mr. President, I have quoted once before in the Senate, and 
make no apology for quoting it agaiu, the opinion of the Supreme 
Court of the United States in the case of Loughborough vs. Blake, 
in 5 Wheaton. That was a case involving the question whether a 
direct tax must, by act of Congress, apply to the people of the 
District of Columbia. Chief Justice Marshall delivered the opin- 
ion, and every justice upon the bench, as Marshall took pains to 
declare, agreed with him in his decision. The question argued in 
the briefs of counsel and urged before the court was whether the 
term " United States " included the District of Columbia. We 
are told now that Puerto Rico is not in the United States, or, if it 
is, that it is a province, a colony, and that the Philippines are in 
the same position. The point in this case was, Did the term 
'• United States "' include the District of Columbia? It is exactly 
pertinent to the question that is now pending in regard to these 
insular possessions. I will ask the Secretary to read so much of 
this opinion as I have here marked. 

The Secretary read as follows: 

In 5 Wheaton, "Loughborough vs. Blake," Chief Justice Marshall, deliver- 
ing the opinion of the court, said: 

" The eighth section of the first article gives to Congress the ' power to 
lay and collect taxes, duties, imposts, and excises' for the purposes therein- 
after mentioned. This grant is general, without limitation as to place. It 
consequently extends to all places over which the Government extends. If 
this eould be doubted, the doubt Is removed by the subsequent words, which 
moilify the grant. These words are: 'but all duties, imposts, and excises 
shall be uniform throughout the United States." It will not be contended 
that the modification of the power extends to places to which the power 
itself does not extend. 

"The power, then, to lay and collect duties, imposts, and excises may be 
exercised, and must be exercised, throughout the United States. Dors this 
term designate the whole or any particular porti m of the Aim rican empire! 
i lertainly this question can admit of but one answer. It is the name given to 
our great Republic, which is composed of States and Territories. The 1 Hstrict 
"i I lolumbia or the territory west oi the Missouri is not less within the United 
81 itea than Maryland or Pennsylvania; and it is nol less necessary, on the 
principles of our Constitution, that uniformity in the imposition of imposts, 
duties, and excises should be observed in the one than the other. Since, then, 
the power to lay and collect taxes, which includes direct taxes, is obviously 
tve with the power to lay and collect duties, imposts, and excises, 
and Bince the latter extends throughout the United states.it follows that 
the power to impose direct taxes also extends throughout the United States." 

Mr. VEST. Mr. President, the other day 1 called the attention 
of t he distinguished Senator from Kentucky | Mr. Lindsai | to this 
decision, which 1 have never h< -a rd explained or alluded to by any 
oi my colleagues who favor wha*l Leal] the imperial side of this 
question. The answer of the Senator from Kentucky was thai 

which all ol us who are lawyers lia\ e been in the habit of making 

when a decision or authority is found absolutely againsl the posi- 
tion we endeavor to maintain— obiter dictum. Sow could this 
tun 



11 



j • • ~t nKiaf TnsHre Marshall have been obiter dictum when 

yigore applied to ^® ^ e ""^ ered in 1820 and had stood from 

in the case of Loaghborou n ^a J*™"- h become necessary 

and his brief in the Tanto case. " _ device lor it is 

decision of any judical tn bunal. V ; - that ^ < . 
not worthy, in my ;,n,l^n^ 2* "J i( . , , n Marshall to apply 
Constitution of the United Si. tea, s.n d D | * juriadicfion, 

to all the territory over which ^the ^rnmentna jn ^ 

must be extended by act of Co igi e» KrltoUl limits. 

°1^Sde^ons'^ Su^ Court of the United States, 



4102 



12 

which I will not inflict upon the Senate at this late hour, but will 
take the privilege of inserting thern in the report of my remarks, 
in all of which, and I challenge contradiction, the Supreme Court, 
without one single dissent, has declared that the Constitution of 
the United States gave to the people of the Territories and the 
District of Columbia ail the rights, privileges, and immunities 
given to the people in any of the States. 

In Mormon Church vs. the United States, Mr. Justice Bradley 
delivered the opinion, and said: 

Doubtless Congress in legislating for the Territories would be subject to 
those fundamental limitations in favor of personal rights which are formu- 
lated in the Constitution and its amendments: but these limitations would 
exist rather by inference and the general spirit of the Constitution from 
which Congress derives all its powers, than by any express and direct appli- 
cation of its provisions. 

In McAllister vs. the United States, Mr. Justice Harlan delivered 
the opinion and repeated the language of the court in the Mormon 
Church vs. United States. 

In Thompson vs. Utah. Mr. Justice Harlan, delivering the opinion 
of the court, said: 

That the provisions of the Constitution of the United States relating to the 
right of trial by jury in suits at common law apply to the Territories of the 
United States is no longer an open question. (Webster vs. Reid, 11 How.. 437, 
4tih; American Publishing Company vs. Fisher, ltiti U. S., 464, 468; Springville 
vs. Thomas, 166 U. S., 707.) In the last-named case it was claimed that the 
Territorial legislature of Utah was empowered by the organic act of the Ter- 
ritory; of September it. 1850 (9 Stat. 453, chapter 516), to provide that unanimity 
of action on the part of jurors in civil cases was not necessary to a valid ver- 
dict. This court said: In our opinion the seventh amendment secured una- 
nimityin finding a verdict as an essential feature of trial by juryin common- 
law cases, and the act of Congress could not impart the power to change the 
constitutional rule, and could not be treated as attempting to do so. 

In Murphy vs. Ramsey, Mr. Justice Matthews, delivering the 
opinion of the court, said: 

The personal and civil rights of the inhabitants of the Territories are 
secured to them, as to other citizens, by the principles of constitutional lib- 
erty, which lest lain all the agencies of government, State and national: their 
Solitical rights are franchises which they hold as privileges in the legislative 
iscretion of the Congress of the United States. 

In Reynolds vs. United States. Mr. Chief Justice Waite, deliv- 
ering the opinion of the court, said: 

Congress can not pass a law for the government of the Territories which 
shall prohibit the free exercise of religion. The first amendment to the Con- 
stitution expressly forbids such legislation. Religious freedom is guaranteed 
everywhere throughout the United States, so far as Congressional interfer- 
ence is concerned. 

In Callan vs. Wilson. Mr. Justice Harlan, delivering the opinion 
of the court, said: 

I here is nothing in the history of the Constitution or of the original amend- 
ments to justify the assertion that the people of this District (District of 
Columbia) maybe lawfully deprived of the benefits of any oi the constitn 
tional guaranties ol life, liberty, and property, especially of the privilege of 
trial by jury in criminal cases. 

In the draft of a constitution reported by the committee of five on the Btb 

ust, 17*7, in the convention which trainee 1 the Const i tut ion. the fourth 

section of Article XI read that "the trial of all criminal offenses (except in 

ol impeachment) shall be by jury." <i Elliot's Debates, 2d edition, 

229. i Bu1 thai article was, by unanimous vote. amended so as to read: "The 

trial of all ci epl In eases of impeachment) shall be by jury: and 

such trial shall in- held in the State where the said crime shall nave been 

committed; bul when not committed within any state, then the trial shall 

eh place or places as the legislature may direct.'' (Id., :-'> n - 1 

The object ol thu amending the section, Mr. Madison says, was "to pro- 
vide for trial l>y jurv of offenses commit ted out ol anv State." ol Madison 

Papers, 144.) in Reynolds vs. The United States (98 I .8.. 146, 164) it was 
4103 



13 

taken for granted that the sixth amendment of the Constitution secured to 
the people of the Territories the right of trial by jury in criminal prosecu- 
tions: and it had previously been held in Webster i». Reid ( 11 How.. 4:!?, 460) 
that the seventh amendment secured to them a like right in civil actions at 
common law. We can not think that the people of this District have in that 
regard less rights than those accorded to the people of the Territories of the 
United States. 

Justice Deady, in the case from Alaska (30 Fed. Rep. , 115) , said: 

The power to enlarge the number and limits of the United Slates by the 
admission of new States into the Union is also expressly given to Congress. 
In the construction of this power it has been practically held to authorize the 
acquisition of territory not then qualified for such admission, and the gov- 
ernment of the same by Congress in the meantime, and until it is deemed 
fitted therefor. 

In the exercise of this power, however. Congress can not do or authorize 
any act or pass any law forbidden by the Constitution, as suspending the 
writ of habeas corpus in the time of peace: passing a bill of attainder or ex 
post facto law; quartering soldiers in a house without the consent of the 
owner in time of peace; making a law respecting the establishment of re- 
ligion; but it may exercise any legislative power not expressly forbidden to 
it by the Constitution, and to this there may be a further limit that the same 
shall not be inconsistent with the spirit and genius of that instrument, nor 
contrary to the purpose for which territory may be acquired. Subject to 
these limitations the manner in which this power can be exercised rests in 
the discretion of Congress. 

I ask now — and I will not use the word "challenge " — any of my 
colleagues who have asserted this extraordinary doctrine that the 
Constitution is dead in the Territories until the breath of life is 
breathed into it by Congress or by treaty to find me one single 
allusion in all these cases to the effect that Congress has applied 
the Constitution by direct act to these Territories or that treaty 
stipulations had done the same thing. 

What intelligent lawyer believes that the Supreme Court of the 
United States would have disposed of this great question without 
alluding to the fact that there was a treaty stipulation which ex- 
tended the Constitution to the New Mexican territory, or the North- 
western territory, or the Louisiana territory, or the Florida terri- 
tory, or that Congress had in 1871 passed an act applying the 
power of the Constitution to the District of Columbia, set apart 
for the seat of government? 

Here are cases which I have collated, showing that the right of 
trial by jury could not be taken away from the inhabitants of the 
District of Columbia. Is there anything in these decisions stat- 
ing that that right could not be taken away because the territory 
of the District of Columbia was carved out of Maryland and Vir- 
ginia or ceded by them to the National Government; that the 
Constitution having spread its a>gis over this territory, once a 
part of these two States, it must remain there for all time to come? 

Is it possible that the nine eminent jurists upon the Supreme 
Bench did not see and know that this point disposed of the whole 
controversy? When was it ever heard that an act of Congress 
was necessary to extend the Constitution until this new doctrine 
of imperialism was brought before the people of the United 
States? 

Why, Mr. President, if that be the law. in what a deplorable 
condition must have been the inhabitants of the Territory of Ore- 
gon, which we took from Great Britain upon a compromise, when 
Colonel Benton declared in his first speech in the United States 
Senate, when that controversy was before Congress, that lie could 
take 10,000 Missonrians and settle it in a fortnight? Colonel Ben- 
ton believed in manifest destiny, and that the soil of the United 
States or of this continent belonged to the white men; and he 
4102 



14 

largely sympathized with the idea that the Indians and the Latin 
races must give place to the white man, as the buffalo had given 
place to the domestic animal. 

If this doctrine be true, as I said, then in Oregon, when it was a 
Territory and before its admission into the Union as a State, the 
people there could have been hung without a trial by jury; they 
could have been made to pay tithes to an established church not- 
withstanding the Constitution of the United States forbade it: 
they could have had soldiers quartered upon them in time of peace: 
they could have been refused the right of the writ of habeas cor- 
pus, and the} 7 were left at the mercy of Congress to enact any such 
laws as a partisan majority might see fit to place upon the statute 
book, there being no treaty stipulation nor act of Congress extend- 
ing the Constitution over that Territory. 

I repeat that this doctrine is utterly abhorrent. It violates 
every principle of republican government. It goes further even 
than England has ever gone with some of her colonies, JbeCause in 
Canada and Australia to-day the great writs of right to obtain 
which the commons of England made war upon their kings and 
barons are extended to the people in these territories. Jn the 
Crown colonies this doctrine which is sought now to be applied to 
Puerto Rico and the Philippines obtains to its full extent, but not 
so in Canada and Australia. 

Mr. President, I now repeat that I heartily approve of this bill 
before the Senate. It contains no such unconstitutional provision 
as that in the Puerto Rico bill, declaring that 25 per cent of the 
present tariff taxes shall be levied upon Puerto Rican imports. 
The Constitution says that — 

Congress shall have power to lay and collect taxes, duties, imposts, and ex 
cises; * * * but all duties, imposts, and excises shall be uniform through- 
out the United States. 

Is Puerto Rico a part of the United States or not? Will some 
Senator on the other side answer me that question and remove 
any nebulosity about this argument? Is Puerto Rico a part of 
the United States or entirely outside of its domain and jurisdic- 
tion? If it is a part of the United States, where do you get the 
authority to place upon the imports from that country one-f onrth 
of what you put upon the imports from another, and by what 
right do you place an export duty, as is done in the bill pending 
in another portion of this Capitol, when the Constitution says 
expressly that no export duty shall be imposed either by the 
United States or any State? Where do you find the constitutional 
power to make this discrimination as to one part of the territory 
of this country, orat least territory which is underour jurisdiction? 

Mr. President, we are told that the people there are not citizens. 
What do you propose to do with the fourteenth amendment, 
which declares that all persons born or naturalized in the United 
Stabs, and subject to the jurisdiction thereof, shall not be de- 
prived of their rights as citizens of the United Suites'.-' No State 
shall make any law abridging that right. Wh.it do you do with 
til.- children that are born in Puerto Rico and the Philippines? 
What becomes of the young Malay who grows and becomes J I 
years of age and demands his right as a citizen because he was 
born in the jurisdiction of the Unite. I States? Von are driven to 
the alternative of saying that the Philippines are not within the 
jurisdiction of the Unit. .1 States, when you know that your Army 
and Navy are being used to-day to enforce the Federal power in 
those islands. 



15 

Mr. President. I do not know, nor shall I pretend to prophesy, 
what is to be the end of these strange and monstrous doctrines. 
It may be that I have the pessimism of advanced years: but it 
seems to me that we have come to the most critical period in all 
our history. The war between the States was not any covert at- 
tack upon the Constitution of the country. It was an open, bold, 
armed revolution. The men who fought the Federal authority 
honestly believed that they were righting for the Constitution, and 
gave the highest evidence of their sincerity in laying down their 
lives in defense of what they believed. 

'•Eternal vigilance is the price of liberty." said Andrew Jack- 
son. And now here, not with arms in our hands, but through the 
insidious attacks dictated by political necessity, we are undermin- 
ing the Constitution, and, like the deadly crevasse upon the Mis- 
sissippi River, we are commencing with a minute but fatal assault 
upon the levee that defends the rights of the people. 

Mr. President, if it be said that we are compelled to refuse these 
people in the islands citizenship, and that they are not fit for it, 
why not content yourselves with saying the time has not come to 
give them self-government? 

I heard the distinguished Senator, the young and brilliant Sen- 
ator, from Indiana [Mr. Beveridge] , in his carefully prepared 
address, declare here that these people in the Philippine Islands 
could never become citizens of the United States. How, then, do 
you propose to hold them? Are they colonies? Are the people 
there subjects? The Republican part} 7 claims that it deserves the 
gratitude of all humanity for having placed on the Constitution 
these great amendments for personal and civil rights, declaring 
that slavery should no longer exist, that the immunities and 
privileges of every citizen shall be held sacred by the States. 

How can you in the Republican party forget those things, and 
against our history, against our traditions, against the memory of 
the men who fought through the Revolutionary war to escape 
this very thing, now impose upon the people of the United States 
the issue, Is this a republic or an empire? If you can ignore the 
Constitution, trample upon all that we have taught our people to 
believe for a hundred years, and, in order to secure the votes to 
retain your party in power, appeal to the glamour of conquest, 
gold, and glory, Mr. President, our professions of republicanism 
and democracy are the merest travesty in public life. I am no 
Cassandra shrieking calamity through the streets of Troy; but if 
the people of this country deliberately, next November, indorse 
the position the Republican party assume to-day, then you should 
pass, or the State of New York should pass, an act taking down 
the Statue of Liberty at the mouth of New York Harbor, with the 
lamp in hand to guide the oppressed of all lands to this country. 
You should tear down the statue, extinguish the lamp, and leave 
us to the gloom and darkness of colonial despotism. 
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